Senate Selection Scam

John Nichols // Published January 28, 2009 in The Nation
Americans who imagined their Senate as a democratically elected body representing the popular will were rudely disabused of that notion after the presidential election, when the departure of four senators to the White House and cabinet unleashed a frenzy of back-room wheeling, dealing and scheming so extreme it has led to charges of patronage and nepotism, an arrest and an impeachment.

Regardless of the personal or political merits of newly minted senators Michael Bennet of Colorado, Ted Kaufman of Delaware, Kirsten Gillibrand of New York and Roland Burris of Illinois--two electoral newcomers, an admitted statewide unknown and a five-time loser running for governor, senator and mayor--it is no stretch to suggest they were ill positioned to get to Washington by unseating incumbents or winning open seats. Instead, all four benefited from a constitutional loophole that allows governors to fill Senate vacancies according to their whims.

At the opening of the American experiment, the founders borrowed several ideas from the British Empire, against which they had recently rebelled. They established a legislative branch with two chambers: a popularly elected variation on the House of Commons and an elite variation on the House of Lords. Members of the House of Representatives would be elected via regularly scheduled elections and, when vacancies occurred, special elections. Members of the Senate would be selected by the solons of the various state legislatures. Appalled by the bartering off of seats to wealthy and connected bidders, in 1913 Progressive reformers succeeded in amending the Constitution, shifting the selection of senators from the back rooms to the ballot box. Unfortunately, the Seventeenth Amendment was badly written, with one lesser clause allowing state legislatures to grant governors the right to make "temporary" appointments.

Through that loophole have passed more than 180 senators. Some, such as Alaska's Ted Stevens, have parlayed appointments into Washington careers that stretched for decades. And in the era of big money and professionalized campaigning, it's even easier for appointees to hold their seats--in the past dozen years, only one appointed senator has been beaten in the next election. So now there are a lot of appointees: in addition to the four newcomers, five others were initially selected rather than elected.

The sheer volume of vacancies in the aftermath of last fall's election focused attention on scandal-plagued gubernatorial appointments. But it took Illinois Governor Rod Blagojevich's sleazy maneuvering to fill Obama's seat to expose how badly the process can be corrupted. Then-Delaware Governor Ruth Ann Minner's decision to fill Joe Biden's seat with a former aide to the senator is seen by many as a placeholder for Biden's son, and New York Governor David Paterson's overwrought struggle to fill Hillary Clinton's seat stirred more concerns--and, with them, calls for the direct election of all senators.

Cheered on by the group FairVote, legislators in Rhode Island and Maryland have proposed measures to have their states follow the lead of Wisconsin, Oregon, Alaska and Massachusetts, which require special elections to fill Senate vacancies. And on the eve of Blagojevich's impeachment trial, Senator Russ Feingold announced plans to introduce a constitutional amendment requiring special elections to fill Senate vacancies. "The controversies surrounding some of the recent gubernatorial appointments to vacant Senate seats make it painfully clear that such appointments are an anachronism that must end," he explained.

Feingold's amendment is more than just a good-government initiative. It renews the promise of a previous generation of Progressive reformers who wisely asserted that the best cure for what ails democracy is more democracy.